Two Leaks from the D.C. Circuit List Serve

Judges should stop treating internal emails as confidential.

|The Volokh Conspiracy |

Enough about Supreme Court cases with leaks. Now, let's move onto the second highest court in the land. In August 2019, someone leaked to the Washington Post an email exchange between D.C. Circuit Judge A. Raymond Randolph and D.D.C. Judge Emmet Sullivan.

A U.S. District Court judge forwarded an email to about 45 judges and their staffs to flag an upcoming climate-change seminar co-sponsored by the research and education agency of the judiciary branch. His note said, "just FYI."

Within an hour a judicial colleague responded sharply to the group, questioning the first judge's ethics and urging him to get "back into the business of judging, which are what you are being paid to do." He also said, "The jurisdiction assigned to you does not include saving the planet."

Randolph subsequently recused from a case involving climate change.

Now, another email exchange has leaked from the D.C. Circuit to the Intercept.

In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets.

"Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves," Silberman wrote.

Silberman's post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions.

"Hi Judge Silberman," began the career-risking reply-all email, "I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own," they went on. "Since no one in the court's leadership has responded to your message, I thought I would give it a try."…

The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential.

May I offer some helpful advice to judges, and everyone else: do not treat email as confidential. Everything you put in print may wind up in the Washington Post–literally.

Update: The Washington Post identified the law clerk who wrote to Judge Silberman.

"Since no one in the court's leadership has responded to your message, I thought I would give it a try," wrote Derrick Petit, who works in the chambers of U.S. District Judge Emmet G. Sullivan.

Petit, who declined to be interviewed, concluded his reply to the judge by writing, "This moment of confronting our nation's racial history is too big to be disregarded based on familial ties."

And WaPo also identified the judges who wrote back.

Petit's reply prompted a chain of responses from judges who praised the law clerk for speaking up.

"Thank you for your thoughtful response," wrote District Court Judge Tanya Chutkan.
"Your concerns are indisputably well taken," added D.C. Circuit Judge Harry Edwards. "I hope that one day these issues will be behind us."
"I know it took courage to send such an email," wrote D.C. Circuit Judge Patricia Millett.
Judge Robert Wilkins, who was set to interview Silberman on Monday as part of the summer series for law clerks and interns, also chimed in.

He thanked Petit for his message, "the sentiment of which I absolutely agree." Wilkins also offered a clarification to his colleague's initial email. Silberman, he said, may have been objecting only to the cemetery provision of Warren's proposal.
"I cannot speak for Judge Silberman, but I raise this because it may have been that aspect of the bill to which he was referring and I didn't want there to be an unnecessary misunderstanding," Wilkins wrote.

That prompted Silberman — who was nominated to the bench by President Ronald Reagan and took senior status in 2000 — to write again.
"Thank you for your thoughtful message," Silberman wrote to Petit. "Judge Wilkins is absolutely correct; my concern was limited only to cemeteries."

Silberman spoke to the Post:

Silberman emphasized in an interview Tuesday that he was not criticizing Warren's entire legislative proposal.

"I didn't intend that to be public," Silberman told The Post. "I was being interviewed about my life for the court family, and Judge Wilkins correctly understood what I said."

Wilkins, a former public defender, spent years helping to plan and build the National Museum of African American History and Culture to examine the nation's history, learn from stories of racial division and engage in these types of conversations.

Because of the back-and-forth this week, Wilkins said Tuesday that he and Silberman have scheduled a follow-up discussion for the courthouse community Wednesday.

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  1. …And I’m pleased to confidently predict that judges, being made of people, will continue to accidentally leak their honest viewpoints, pornography and stupidity just like everyone else.

  2. My favorite e-mail response is of course…

    “Please give me a call”

    1. Yeah, everyone should attempt to circumvent the FOIA because it is a stupid liberal law.

      1. Pretty sure that isn’t what he was insinuating.

      2. “circumvent the FOIA”

        Does FOIA apply to federal judges?

  3. Confidential sharings should be safe from WaPo, but maybe not the next room over, if the Cone of Silence is used. Alternatively, judges could use Hover Cover or the Hall of Hush.

    1. Two can keep a secret if one is dead. Anything in email can be shared against the sender’s or recipients’ will. If you want it confidential, try some other means.

      1. Weird veiled threat. My comment had nothing whatsoever to do with sending or receiving emails, btw, but you’re welcome to my boring emails, along with the other hackers in my life.

        Get smart, will ya?

        1. WOW!! Where in hades did that come from? You are replying to the restatement of ancient cautions for those in public life.

          The first is from Ben Franklin on keeping secrets. The second is from a Brit (Disraeli perhaps?) on not committing to writing that which you don’t want to later see in newspapers.

          Seeing how Reason has disabled editing, the second caution is apropos.

          1. Goodness, It seemed a rather macabre comment in reply to mine about silly alternative ways to keep comms confidential. I didn’t even mention emails. Did you mean to reply to someone else?

            All the best!

      2. “Anything in email can be shared against the sender’s or recipients’ will.”

        Depends on how competent the administrator of your email system is.

        1. Can the administrator prevent a screen shot? What about a phone camera taking a picture of the screen?

  4. The case of Silberman’s e-mail is actually more interesting than it would appear. He started out with a pretty much standard reactionary stance on the subject of base renaming. (The key to the mindset is the use of the word “madness.”)

    No other judge on the cc list responded. A clerk responded with a very well written rebuttal. Then other judges responded, concurring with the clerk. At the end of the day it seems that Silberman ended up mitigating, if not fully changing, his initial position. If so he deserves a lot of credit for open mindedness.

    All the interchanges after the first outburst were both firm and polite but the whole thing turned out to be a pretty good example of how online discourse should be.

    1. “He started out with a pretty much standard reactionary stance on the subject of base renaming.”

      It’s not clear whether his stance was about base renaming or just the part about individual graves (“the desecration of Confederate graves”). According to the Intercept article,

      “Indeed, during the debate over the amendment, which took place behind closed doors, Sen. Tom Cotton, R-Ark., offered an amendment that would exempt graves and monuments, a source familiar with the discussions said. Warren pushed back, arguing that an exception for monuments would be far too broad and could become a loophole that undermined the requirement, but she agreed that there was no need to rename gravesites themselves. “

    2. So to you the ‘sane’ ones are the guys marching all around like Red Guards tearing down statues in gravesites and freaking out over ropes in certain shapes that happen to be lying around?

      1. Off topic table pounding is how I know you’ve got nothing.

    3. Except that McArthur decided (wisely) not to execute Hirohito after WWII.

      It was a civil war, and the victorious North had to be gracious in victory in order to rebuild the country and that means naming things IN THE SOUTH after Southern heroes. It’s a whole lot better than fighting another bloody war, isn’t it?

      Isn’t it???

      1. As they see it, refighting the civil war was just put off a while, not cancelled altogether. The only sense in which the left don’t want civil war today, is that they’d prefer their enemies abject surrender.

        1. As usual, you sure do know the secret evil plans of the liberals in your head!

          1. No, we are simply listening to the plain language of people in the Capitol Hill occupied area, where they are openly flouting laws, threatening to shoot any government officials who enters their claimed territory without permission, and actively demand complete override of significant portions of our society.

            It might not be a majority, but they do exist and they do have power.

            1. Let us know when they start driving cars into crowds, and shooting demonstrators.

              That’s what your guys are doing.

              Cue “But Steve Scalise” from Brett.

      2. All the army bases named after Confederate generals were built around the start of WWI or WWII, 50 or 75 years after the Civil War.

        Camp Beauregard in 1917.
        Fort Gordon 1917
        Fort Lee 1917
        Fort Benning 1918
        Fort Bragg 1918.
        Fort A.P. Hill 1941
        Fort Pickett 1941
        Fort Polk 1941
        Fort Rucker 1942
        Fort Hood 1942.

      3. It was a civil war, and the victorious North had to be gracious in victory in order to rebuild the country and that means naming things IN THE SOUTH after Southern heroes. It’s a whole lot better than fighting another bloody war, isn’t it?

        No. Also, your claim is (and this will come as a shock to anyone who knows you through your comments) bullshit. These bases were mostly if not all named in the early to mid 20th century, decades after the war.

    4. “standard reactionary stance” then “open mindedness” because he now agrees with you.

  5. Is the Judge Randolph who criticized Judge Sullivan for circulating a notice with respect to a presentation the same Judge Randolph who regularly participates in Federalist Society programs?

    Let’s hope Pres. Biden replaces this obsolete loser and hypocrite.

    1. “Appointed for life”, chew on that , Rev. You’re giving Biden powers that not even Trump has.

      1. Randolph will eventually be replaced, as will every clinger.

      2. “Appointed for life” is not the same thing as “appointed forever”.

        Even stubbornly partisan judges eventually get called before a higher power.

    2. Senior status since 2006ish. Replaced by Kavanaugh who was replaced by Rao.

      1. Thank you

  6. I was wondering when Josh was going to get to this. DC Circuit drama is probably the second most prestigious drama in the country.

    But it did expose something pretty great: whatever SCOTUS justice, firm, government agency, non-profit, company, university, or client gets that clerk in the future is going to be extremely lucky to have them.

    1. That clerk will probably never represent anyone with whom he or she disagrees. Otherwise, there would be a risk that the clerk would violate professional standards by leaking attorney/client confidences to the media.

  7. Leaving to one side why the judiciary has a “research and education agency”, but if they do, what’s unethical about circulating an invitation to an event they sponsor? Why would that judge recuse themselves off anything?

  8. I am reminded of one of my favorite lawyer jokes:

    Yale has a vacancy and needs a new president. The trustees narrow their selection down to three candidates — a pollster, an engineer, and a lawyer. They invite the three finalists in for individual interviews, one after the other. The interview consists of one question: “How much is two plus two?”

    The pollster walks to the window, opens it, licks his thumb, and sticks it out. He returns to the conference table, does a drum-roll on the table while humming a fanfare, and announces: “Four, but with a margin of error of 2.”

    He’s escorted out, and in comes the engineer. Asked the same question, he pulls out his slide rule (it’s a very old lawyer joke), manipulates it frantically, and says: “Four point zero zero to three significant figures, assuming constant temperature and air pressure.”

    Finally they bring in the lawyer. Upon hearing the question, he leaps to his feet and closes the windows and drapes. He unplugs the telephones. He motions all of the trustees into a huddle in the corner of the room, cups his mouth with his palms, and whispers:

    “How much do you want it to be?”

    *****

    I tell my clients to dance like nobody’s watching, but to post, text, tweet, or email like it will be read aloud to the jury over the court PA system by a hostile prosecutor.

    1. I tell students to presume it will be on the front page of tomorrow’s student newspaper — and the version I heard involved an accountant, not attorney.

      1. I tell students to get the information and put it on the front page of the newspaper.

        1. A pity you poison young minds with your ideological filth.

          1. I get to shape America’s progress and future.

            You get to whine about it.

            Everybody happy?

    2. I had one boss who never sent emails. Indeed, she never wrote memos. She would have other people send messages under their own name but on her behalf.

    3. That’s great advice. I actually had a professor for my 1L legal writing class tell us that many client communications should not be written down. Didn’t make me feel like I was getting into a shady profession at all 🙂

  9. I have a question about all this military getting rid of Confederate stuff. Does this mean the descendants of General Robert E. Lee get Arlington back?

    1. It’s true they took it to bury war dead there and say, “Look at what you did!”, but one of the descendants who would have inherited it eventually took the government to court and got paid $150,000 (in then-dollars!)

  10. Gutsy clerk. His name was not given, but with only five black clerks in the entire circuit, everyone probably figured out who it had to be.

    1. It’s easy to be gutsy when you have a mob of Brownshirts behind you.

    2. “Gutsy “?

      He expressed the popular opinion and he is the correct race, he was never at any professional risk.

      “everyone probably figured out who it had to be

      He used his court e-mail. It was never a secret.

      1. Watching cranky old clingers mutter bitterly about uppity blacks (and the unfair advantages blacks possess in America) has been more fun than I expected it to be.

        I may miss their lamentations as they die off and are replaced by better Americans.

      2. Law clerks are supposed to be bootlicks.

  11. Decades ago I worked for a large company headquartered in a small European country. The CEO was being tapped to minister some government agency. He sent out an email to all 2000 employees saying “I’m leaving you to be this bigshot in government. Pssst! Don’t tell anyone! It’s our little secret!”

  12. A judge forwards an event co-sponsored by the agency in charge for judicial training and improved administration, and that is a problem, let alone news? If a judge attends a workshop on improved recycling practices in the courthouse and safe and sustainable litter disposal, does it make them ineligible to sit on environmental cases? Getting first aid training as part of the job means to rescue yourself for injury cases? This seems bizarre. The judiciary, just like any other service, can do things better to have less environmental impact, why is learning about this an issue?

    1. It wasn’t the judge who forwarded the invitation who ended up recusing himself from environmental cases. It was the judge who was mad about the forwarded invitation. And the reason he recused is because he expressed an opinion that climate change science was “anything but” real science, suggesting that he had prejudged the matter and would not be able to adjudicate related issues fairly.

      But you’re correct, there is no reason that the judge who forwarded the invite would have to recuse himself. Same with your other examples.

    2. It would be interesting to know the details of that seminar, like who put together the materials for it, where they gathered them from, who was presenting, etc. In recent times, many judicial colloquia on environmental and regulatory topics have been anything but balanced

  13. In one training item on e-mails, I told my employees to “never write anything in an email that you aren’t comfortable being read to your boss, your mother, or on the 6:00 news”. E-mails are practically undeletable and can be forwarded nearly endlessly.

    1. Ben, I bet Hilary is shaking in her boots.

  14. Imagine how partisan you have to be to complain about un-naming military bases after traitors. Why the fuck are any of our military bases named after traitors in the first place? Our military bases should be named after loyal officers. This doesn’t seem like a complicated notion, which is why the Trump administration opposes it.

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